Ex Parte Piczon

Patent Trial and Appeal Board

Nov 19, 2012

11807723 (P.T.A.B. Nov. 19, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/807,723 05/30/2007 Rhinn Paul Lucero Piczon AA-700MC 6451
27752 7590 11/20/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
GEHMAN, BRYON P
ART UNIT PAPER NUMBER
3728
MAIL DATE DELIVERY MODE
11/20/2012 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RHINN PAUL LUCERO PICZON
____________

Appeal 2010-011204
Application 11/807,723
Technology Center 3700
____________

Before EDWARD A. BROWN, JAMES P. CALVE, and
WILLIAM A. CAPP, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the rejection of claims
1, 2, 4-14, and 17-23. App. Br. 1. Claims 3, 15, 16, 25, and 26 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM and enter a NEW GROUND OF REJECTION
pursuant to our authority under 37 C.F.R. § 41.50(b).
Appeal 2010-011204
Application 11/807,723

2
CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim and representative of the
claimed subject matter on appeal:
1. A set of stacked product arrays, comprising
A. a first stacked product array having enhanced
visibility and recognition comprising a plurality of
individual products, each individual product
comprising a visible graphic, wherein when the
individual products are aligned together at least
one edge of each of said visible graphic matches at
least one edge of at least one other of said visible
graphic, wherein at least one of said visible
graphic is different from at least one other of said
visible graphic, wherein when the individual
products are stacked appropriately the combination
of said visible graphics forms at least one
continuous larger visible graphic wherein the area
of the at least one continuous larger visible graphic
is larger than the average area of said visible
graphics; and
B. a second stacked product array having enhanced
visibility and recognition comprising a plurality of
individual products, said second stacked product
array being stacked immediately behind the first
stacked product array,
wherein at least one individual product in the second
stacked product array comprises the same visible graphic
as a corresponding individual product from the first
stacked product array, such that if the corresponding
individual product is removed, the visible graphic from
the individual product from the second stacked product
array appears to form part of the at least one continuous
larger visible graphic of the first stacked product array,
wherein the set of stacked product arrays forms a rough
cube having four horizontal sides, each side containing a
Appeal 2010-011204
Application 11/807,723

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continuous larger visible graphic, wherein the products
are in the form of boxes, and wherein said individual
products of said first stacked product array are stacked
without a display case or stand.

REJECTIONS
Claims 1, 2, 4-13, and 17-23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Nerushai (US 6,223,912 B1; iss. May 1, 2001), Suzuki
(US 2006/0042984 A1; pub. Mar. 2, 2006), and either Olson (US 5,430,992;
iss. Jul. 11, 1995) or Reinhold (US 2,032,717; iss. Mar. 3, 1936).1
Claim 14 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Nerushai, Suzuki, and Olson or Reinhold, further in view of Kaliwoda (US
3,522,688; iss. Aug. 4, 1970).
ANALYSIS
Claims 1, 2, 4-13, and 17-23 as unpatentable over Nerushai, Suzuki, and
Olson or Reinhold
Appellant argues claims 1, 2, 4-13, and 17-23 as a group. App. Br. 3-
5. We select claim 1 as representative. 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner found that Nerushai discloses a stacked product array
with aligned product edges that form at least one continuous visible graphic
larger than any visible graphic on individual products for enhanced visibility
and recognition. Ans. 5. The Examiner found that Suzuki discloses an array

1 The Examiner rejected claims 1, 2, 4-13, 17-24, and 27-31 under 35 U.S.C.
§ 103(a) as unpatentable over Nerushai, Suzuki, and Olson or Reinhold in
the Final Rejection that Appellant has appealed. Final Rej. 2-6, mailed Sep.
23, 2009. Appellant acknowledges that claims 1, 2, 4-14, 17-24, and 27-31
are rejected but appeals only the rejection of claims 1, 2, 4-14, and 17-23.
App. Br. 1. Upon return of jurisdiction of this application to the Examiner,
the Examiner should consider canceling claims 24 and 27-31. See Ex parte
Ghuman, 88 USPQ2d 1478 (BPAI 2008) (per curiam).
Appeal 2010-011204
Application 11/807,723

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of products where products of a second stacked product array have the same
visible graphic as the product immediately in front of it to maintain the at
least one continuous larger visible graphic upon removal of a first stacked
product array product, and determined that it would have been obvious to
provide Nerushai’s stacked array with such layered sets of visible indicia to
predictably maintain the visible continuity of the continuous larger visible
graphic in the manner suggested by Suzuki. Ans. 6. The Examiner also
found that Nerushai does not provide larger visible graphics in more than
one dimension of the set, but Olson and Reinhold disclose a set of stacked
articles with larger visible graphics provided in at least two dimensions on
the set. Ans. 6. The Examiner found that Figure 2 of Nerushai discloses a
standalone stacked array of packages to be provided with indicia as claimed
and “to any degree it is not expressly disclosed as a standalone three
dimensional array, would certainly suggest the same to one of ordinary skill
in the art, as stacked arrays of products disposed in a store or warehouse are
extremely conventional and well known, either for display or convenience in
storage.” Ans. 9-10. The Examiner noted that “[o]fficial notice has been
taken during prosecution that free-standing arrays of boxes are common in
self-serve retail stores, such as Sam’s Club, Costco or beer distributors.”
Ans. 10; see also Final Rej. 5.
Appellant argues that the Examiner’s reliance on Figure 2 of Nerushai
to disclose a three dimensional array of stacked products without a display
case or product stand is improper because Figure 2 simply illustrates a three
dimensional product matrix showing the position of packages 4 in a stand.
App. Br. 3-5 (citing col. 4, l. 62 to col. 5, l. 4; col. 6, ll. 16-29). Appellant
also argues that Nerushai discloses that Figure 2 shows a three-dimensional
Appeal 2010-011204
Application 11/807,723

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matrix of rows, lines, and columns in accordance with the invention (col. 3,
ll. 64-65) and the “stand is a three-dimensional matrix consisting of rows 5
(FIG. 2), lines 6 and columns 7, in accordance with which packages 4 with
products are arranged on the stand.” App. Br. 4 (citing col. 4, ll. 21-23).
Appellant further argues Nerushai’s stand “provides for the driving force to
move packages generated by either inclined shelves or a reaction frame for a
spring that moves a package towards the face surface” so that “it would not
have been obvious to provide for an embodiment of Nerushai et al. without a
stand as that would change the principle of operation.” App. Br. 4, 5.
These arguments are not persuasive because the Examiner is not
proposing a change to Nerushai’s principle of operation. The Examiner
instead found that Figure 2 would suggest to a skilled artisan in the context
of the general disclosure of Nerushai a standalone stacked product array to
be provided with indicia. Ans. 9. The Examiner also took Official Notice
that such standalone stacked product arrays are common in self-serve retail
stores. Final Rej. 5; Ans. 10. Appellant did not challenge the Examiner’s
taking of Official Notice or otherwise persuade us or error in that finding.
See In re Fox, 471 F.2d 1405, 1406-07 (CCPA 1973) (affirming rejection
under 35 U.S.C. § 103 without citation of any prior art based on facts that
were unchallenged by the appellant); see also In re Ahlert, 424 F.2d 1088,
1091 (CCPA 1970). The Examiner reasonably found that product arrays are
well-known in the art, that Nerushai and Suzuki disclose forming a larger
visible graphic from visible graphics on individual products in an array, and
that Olson and Reinhold provide graphics in multiple dimensions. Appellant
has not persuaded us of error in the Examiner’s findings or determination of
obviousness. We sustain the rejection of claims 1, 2, 4-13, and 17-23.
Appeal 2010-011204
Application 11/807,723

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Claim 14 as unpatentable over Nerushai, Suzuki, Olson or Reinhold, further
in view of Kaliwoda
Appellant argues that claim 14 is allowable due to its dependence
from claim 1. App. Br. 5-6. Because we sustain the rejection of claim 1,
this argument is not persuasive and we sustain the rejection of claim 14.
NEW GROUND OF REJECTION

We enter a NEW GROUND OF REJECTION of claim 8 under 35
U.S.C. § 112, second paragraph, as being indefinite because it depends from
a cancelled claim 3, so that its scope cannot reasonably be determined.
DECISION
We AFFIRM the rejection of claims 1, 2, 4-14, and 17-23.
As provided supra, we enter a NEW GROUND OF REJECTION:
Claim 8 is rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite.
Regarding the affirmed rejection(s), 37 C.F.R. § 41.52(a)(1) provides
“Appellant may file a single request for rehearing within two months from
the date of the original decision of the Board.”
In addition to affirming the Examiner's rejections of one or more
claims, this decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:

Appeal 2010-011204
Application 11/807,723

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(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected, or both,
and have the matter reconsidered by the Examiner, in which event the
proceeding will be remanded to the Examiner….
(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record….
Should Appellant elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed
rejections, the effective date of the affirmance is deferred until conclusion of
the prosecution before the Examiner unless the affirmed rejections are is
overcome.
If Appellant elects prosecution before the Examiner and this does not
result in allowance of the application, abandonment or a second appeal, this
case should be returned to the Patent Trial and Appeal Board for final action
on the affirmed rejections, including any timely request for rehearing
thereof.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED; 37 C.F.R. § 41.50(b)

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